[CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model

[Kavouss Arasteh]

Dear All,
I wrote
Customary law
Tks
Kavousd

Sent from my iPhone

> On 15 Jun 2015, at 22:16, Dr Eberhard W Lisse <el at lisse.NA> wrote:
> 
> Dear Co-Chairs,
> 
> International law has nothing to do with this. And I think we have
> discussed what International law does/is previously.
> 
> el
> 
>> On 2015-06-15 21:11 , Kavouss Arasteh wrote:
>> Becky
>> Thank you for reply,
>> According to all applicable international law every organisation ,
>> state, institution  has a Constitution, convention, charter and ,,,, the
>> Bylaws is the ICANN charter which governs its activities.
>> It is NOT a contract at all . From international customary law the
>> definition of contract is quite different from the charter, convention,
>> treaty, agreement .
>> ICANN community are spread over the whole  world and  should not be
>> subordinated to  something which inconsistent with all norms rules .
>> Regards
>> Kavouss
>> 
>> Sent from my iPhone
>> 
>> On 15 Jun 2015, at 20:23, Burr, Becky <Becky.Burr at neustar.biz
>> <mailto:Becky.Burr at neustar.biz>> wrote:
>> 
>>> Re my previous comment:
>>> 
>>>>>    As I understand it, Courts view the bylaws as a contract 
>>>>>    between a corporation and its members/shareholders.  If
>>>>>    ICANN  has no members, the bylaws are not a contract with
>>>>>    anyone, so the only party with authority to enforce would be the
>>>>>    Attorney General.  (As discussed elsewhere, this is extremely
>>>>>    unlikely to happen outside of a fraud/corruption situation.)
>>> To Kavouss – my comment is simply a restatement of applicable law, and
>>> how the Courts in the US would interpret the Board’s obligations in
>>> the Bylaws.   I was not taking any position on whether this is good,
>>> bad, desirable, not, etc.
>>> 
>>> To Chris re infinite regress.  Ultimately, yes.  
>>> 
>>> On the question of IRP/arbitration v. court, I am now quite confident
>>> that as a matter of law we should be able to require members to
>>> resolve disputes – including disputes related to breach of charitable
>>> trust/fiduciary duty – through the IRP.  There are no guarantees in
>>> life, however, and courts in California – just like courts anywhere in
>>> the world – sometimes do surprising things.  But putting aside some
>>> real corner cases, the Federal Arbitration Act, as interpreted by the
>>> US Supreme Court, is increasingly deferential to properly crafted
>>> choice of forum provisions in contracts, including bylaws in
>>> company/shareholder/member disputes.
>>> 
>>> So we should take the “endless litigation” and decisions by California
>>> courts out of the debate on the “voluntary/cooperative” model vs. the
>>> “enforcement/membership” model please.  I know that won’t resolve the
>>> debate, but try to focus on other concerns.
>> 
>> 
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